Tuesday, August 31, 2010

Here is a link to a recent L.A. Times article about Dr. Lisa Tseng, an osteopath in Rowland Heights, a Los Angeles suburb. Last week after a 3 year investigation, the U.S. Drug Enforcement Administration deemed her "an imminent danger to public health and safety" and suspended her license to prescribe drugs prone to abuse. The L.A. Times has followed this story closely and is a hard lesson for physicians who prescribe painkillers, muscle relaxants and anti-anxiety medications as part of their practice.

Dr. Tseng has a clean record with the Medical Board and has not been charged with a crime. We have handled a number of these type of cases and the medical charts will be important as part of her defense and preventing any criminal cases from being filed.

In late July 2010, five South Florida residents, Arturo Fonseca, Isis Torres, Francisco Portillo, Eduardo Romero and William Madrigal, pleaded guilty before U.S. District Judge Adalberto Jordan to various health care fraud charges. The five individuals were originally charged in an indictment in December 2009. The pleas of these individuals show how medical clinics and physicians worked with home health agencies, Medicare beneficiaries and marketers.

In Florida, non-physicians can own medical offices. Arturo Fonseca, 47, was an admitted owner and operator of Courtesy Medical Group Inc. Mr. Fonseca pleaded guilty to one count of conspiracy to commit health care fraud and five counts of soliciting and receiving health care kickbacks. At the plea hearing, Mr. Fonseca admitted that Courtesy operated in part to provide prescriptions, plans of care and medical certifications, among other things, to Miami-area home health agencies.

According to court documents, Courtesy provided these medical documents so that the home health agencies could bill the Medicare program for expensive home health services and therapy for beneficiaries that did not need and in some cases did not receive the purported treatments. According to the Indictment, approximately 344 prescriptions were issued through Courtesy and signed by Fonseca’s co-defendant, Dr. Fred Dweck. As a result, it was alleged the Medicare program was fraudulently billed approximately $16.6 million for home health services.

Eduardo Romero, 44, was a patient recruiter for ABC Home Health Care Inc., and Florida Home Health Care Providers Inc., two Miami-area home health care agencies. Mr. Romero pleaded guilty to one count of conspiracy to commit health care fraud, and three counts of soliciting and receiving health care kickbacks. According to plea documents, Mr. Romero admitted that in his role as a patient recruiter, he would solicit and receive kickbacks and bribes from the owners of ABC and Florida Home Health in return for providing Medicare beneficiaries that the home health agencies could use to bill the Medicare program for unnecessary home health care services.

Mr. Romero also admitted to paying kickbacks and bribes to the owners and operators of Courtesy in return for the prescriptions for unnecessary home health care services. Medicare was billed approximately $391,593 for purported home health care services that were not medically necessary or were not rendered for the patients recruited by Mr. Romero and one of his co-defendants. The owners and operators of ABC and Florida Home Health pleaded guilty in a separate case and are awaiting sentencing.

Two nurses who worked for the home health agencies also plead guilty in this case. Francisco Portillo, 41, and Isis Torres, 37, each pleaded guilty to one count of conspiracy to commit health care fraud and one count of making false statements in patient files. According to plea documents, Portillo and Torres were nurses and falsified patient files for ABC and Florida Home Health to make it appear that the patients qualified for home health care services, when in fact they did not qualify and in some instances never received any treatments. According to court documents, Portillo was responsible for approximately $142,000 in fraudulent Medicare billing and Torres was responsible for approximately $528,400 in fraudulent Medicare billing.

One interesting twist in this case is that a Medicare beneficiary was actually charged. William Madrigal, 56, pleaded guilty to one count of conspiracy to commit health care fraud and one count of soliciting and receiving health care kickbacks. According to plea documents, Madrigal, a Medicare beneficiary, admitted that he solicited and received kickbacks and bribes in return for allowing ABC and Florida Home Health to bill Medicare for home health care services for which he did not qualify. Mr. Madrigal admitted that as a result of his role in the scheme, approximately $68,760 was fraudulently billed to Medicare for unnecessary home health care and therapy.

I see that many of the beneficiaries are participating in the fraud and kickback schemes and the government agencies (state and federal) are doing very little if anything in outreach or sanctions to stop the fraud at the inception. Medicare beneficiaries receive EOBs (explanations of benefits) and know if Medicare is being billed for services not received. Yet when poor Medicare beneficiaries sell their number or agree to unnecessary services for payment, this creates greater problems in the system.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers and in health care fraud related matters in California and throughout the country. Their website is: http://www.greenassoc.com/

Tuesday, August 24, 2010

With health care professionals increasingly chosing to work for correctional institutions, they need to be very careful to follow all rules and regulations of those facilities and to remember the population they are serving some of whom have mental illnesses or psychological disorders. A recent case is a lesson for all health care professionals working in prisons.

On or about August 12, 2010, Godfrey Onugha, a dentist working at the Federal Correctional Institution in Tallahassee, was sentenced to five months’ imprisonment, five months of home detention and a $3000 fine for one count of sexual abuse of a ward (or inmate) within a federal prison. Dentist Onugha 50 years old, was sentenced and his guilty plea on May 27 this year.

Dentist Onugha admitted in his plea that in January of this year, he engaged in oral sex with a female inmate in the x-ray room of the dental unit in the prison. The DNA profile developed from a semen sample on the inmate’s shirt matched the DNA profile of the defendant. Dentist Onugha claimed that the encounter was consensual and was initiated by the inmate. The inmate claimed that he forced himself on her. In addition to the prison term, Onugha will also be required to serve a term of five years’ supervised release following his release from custody.

Attorney Commentary: This offense used to be a misdemeanor but in the past five years the laws have changed. Even consensual sexual contact between staff and inmates, which previously was punished as a misdemeanor, has been reclassified as a felony and the maximum penalty for that offense is 15 years (where it used to be 1 year).

I worked on a case 15 years ago where an inmate initiated sexual contact in order to obtain preferential treatment and then filed a civil rights lawsuit claiming there was sexual assault. In this dentist's case, after the conviction he will have consequences to his license which could include loss of the license depending on the state.

In addition, the health care professional needs to remember that the patients will be viewed as vulnerable given the fact they are in prison. Cases involving sex with a patient are taken very seriously by the various Boards.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation or to discuss this post.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed providers and in investigations and criminal matters in California and throughout the country. Our website is: http://www.greenassoc.com/

Sunday, August 22, 2010

If you are a health care provider with a Medicare or Medi-Cal provider number -- especially in Southern California --chances are you WILL be audited or have an on-site visit at some point over the years. The audits and on-site visits (sometimes unannounced) have increased dramatically over the past years and will continue to increase as the state and federal governments face budget problems. In addition, the private insurers who administer Medicare are required by their contracts with the government to audit whether they suspect improprieties or not.

Your practice may also be subject to audits from insurance companies and health maintenance organizations (HMOs). The audit must be taken seriously since it can result in an overpayment being assessed and/or adverse administrative history. However, do not panic. Although it can seem like an intimidating event, you can increase your chances of prevailing and not having an unfair overpayment amount assessed if you prepare for any potential audit in advance and handle it properly once the request is made.

Here are some strategies and tips for helping you not only survive your audit but being prepared and prevailing to the greatest extent possible:

1. Prepare Your Staff In Advance For Understanding That Audits Are Part Of The Healthcare Business. Providers and the staff often erroneously assume that if they are being paid for claims that everything is correct and they are doing everything right. Not so. Medicare and Medi-Cal pay the provider on a "good faith" basis and reserve the right to audit. Private insurers, on the other hand, often require pre-approval before payment. Thus, it is critical that your entire staff understand that the best defense against audits is good charting, documentation, proper coding, and avoiding any upcoding, billing for services not provided or documented or anything else that may be characterized as fraud or abuse.

Once everyone understands that audits are part of the process it also helps them take control of the audit process and not let fear prevent them from handling it professionally. Most Medicare and Medi-Cal audits fall into one of three broad categories:
(1) an audit during the application or updating of application process where there is an on-site visit and review of business records and typically only a limited number of claims;
(2) prepayment audits (most common in Medicare), in which a review of claims is conducted before Medicare pays the physician, where carriers typically want to look at only one or two claims from each physician; and
(3) post-payment audits.

In a comprehensive post-payment audit or review, the carrier reviews a small statistical sample of claims and uses the results to calculate a projected overpayment for a period of months or years.

2. Identify In Advance Who Is Authorized To Speak To Auditors And Any Other Person Or Investigator Who Visits The Office In An Announced Or Unannounced Visit. First impressions count and this applies to audits and other visits by regulators or investigators. You will be better prepared if you determine in advance who is permitted to speak to government auditors or regulators. For example, you do not want the receptionist interviewed about your office's policies and procedures since anything he or she says may be used in your audit.

Establish a procedure that only an office manager, the provider or the health care lawyer are allowed to meet and discuss anything with the auditor or regulator. The other staff should be limited to contacts about establishing times and dates available for meeting unless and until they are instructed to do so by the designated persons in charge of the audit. There are many horror stories about staff meeting with auditors or regulators while the provider is out of the office and giving misinformation which was later used against the provider.

3. In Order To Anticipate An Audit Or Prevent An Adverse Audit, Understand Fully How The Medicare Or Medi-Cal Program Operates. Providers often assume that billers and office staff know how the Medicare and Medi-Cal programs operate when this is often not the case. Billers are used to working from superbills and entering codes without analyzing whether all the program rules are being followed. It should be understood by all that these programs will only reimburse "reasonable and necessary" services where there is the required documentation -- even if the services were provided. If the documentation is not present in the file -- it will be presumed that the service was not provided or that it was not medically reasonable and necessary.

We suggest that the providers have the billers and office managers create a thorough notebook regarding each of the procedure codes billed that contains the printed portions of any relevant manuals about what constitutes 'reasonable and necessary services' as defined by Medicare or Medi-Cal and what documentation is required for these services. It is then necessary to have the providers and anyone who sees patients or provides services read and understand these requirements. In addition, the provider needs to be aware of what your local carrier wants claims forms and patient records to contain because the requirements vary.

The provider may have worked in a hospital or private setting where the documentation requirements are different from private Medicare or Medi-Cal and not realize they are failing to properly document the file. For example, state law and private insurers may allow a physical therapist assistant or physical therapy aide to perform certain tasks in physical therapy while Medicare's billing and reimbursement policies and procedures may not pay for the same treatment by these assistants or aides for Medicare treated patients. Such information typically is contained in the Medicare manual and the local carrier's local medical review policy which are all available online.

Above all else, maintain complete documentation in patient records to substantiate the services billed. Record symptoms and diagnoses, details of the services and level of care provided, and complete progress notes. Medicare considers lack of corresponding documentation as evidence that billed services were not reasonable and necessary. The auditor will consider any related reimbursement as an overpayment and require the provider to refund the applicable amount.

There should be periodic internal reviews of files and education to ensure that the documentation is being done properly. Even if this billing and procedure code notebook and research was not done before the audit, prepare it at the beginning of the audit so everyone at the provider's office is prepared and knows the billing and reimbursement policies. Often during the audit, auditors will be mistaken about documentation or medical necessity requirements.

4. Have A Health Care Attorney To Whom You Can Send Any Audit Letters Or Whom You Can Contact Anytime There Is A Visit And Request For An Interview. If you receive a letter or visit from your Medicare or Medi-Cal carrier requesting a number of charts or records, contact your attorney immediately and fax him or her the letter or business cards of the visitors. Even if the attorney only needs to be minimally involved in most of the audit and file preparation, you need an objective person to ensure that the audit is handled in the best manner possible.

It is often easier for the health care attorney to speak with the auditors and set up a timetable for any interviews or to ensure that there is sufficient time to respond to the request for documentation. In most cases, thirty or sixty minutes of a qualified health care attorney's time at the beginning of the audit is well worth it since it will reduce the risk of overpayment, help reduce the provider's time and help ensure that the audit goes smoothly and that a good impression is made.

Resist the temptation to think that if a health care attorney is involved that an auditor or regulator will think that something is "wrong." In fact, the opposite impression is given: the provider is sophisticated, professional and has an established method for responding to audits. This is especially important in "unannounced" visits where it is easier for a health care attorney to be objective and take control of the situation where an auditor simply shows up and demands records and interviews at that moment. The health care attorney can also address regulatory issues that may be beyond the provider's expertise.

5. Read Any Letters Or Lists Carefully And Make Sure You Understand What Is Requested And See If There Are Any Patterns. This is another reason to send an audit or similar letter to your health care attorney so you understand what is requested. For example, assume that records for specific dates of service are requested as to a certain number of patients. Make sure that you also send in any other documentation that would support the services rendered on that day. This could include laboratory results, X-ray reports, photographs, consultations from other physicians, etc.

When reviewing the audit letter, especially if the letter requests multiple charts, see if there seems to be some type of underlying pattern or theme in the chart notes. Were the requested patient charts all billed for one particular code, all referred by a certain physician, or is there some other pattern? This will assist you in better addressing the concerns of the audit -- which may not be told to you directly by the auditors.

6. Determine With Your Health Care Attorney Whether You Need An Expert Witness Or Coding Expert During The Audit Process. Your attorney and you should consider hiring a coding expert to review the charts, preferably before you submit them to the auditor or carrier. If the expert cannot complete the review before the deadline for producing the records, the attorney will ask for an extension or simply have the expert conduct his review at the same time that the carrier does. Your attorney should have the review done under the attorney work product privilege so that the results will be confidential. One excellent preventative measure is to have a coding expert review charts periodically so that you know that your practice is in compliance with billing and record requirements. This can also be part of a compliance plan.

7. Take Control Of The Audit. Make Sure Records Are Complete. Review Charts And Records Carefully Before Copying Them Or Providing Them To Auditors. The auditors or regulators do their best to put the burden on the provider to prove that the services were properly documented and coded. Remember that the auditors are often not medical personnel even if they have some medical training. The auditors will often ask for the charts right away in unannounced visits.

Take your time and ensure that all reports, notes and other information are in the chart before you produce or copy it. Look for other records such as sign in sheets that will also be relevant to the audit. One of the most important things to do in preparing to respond to an audit is to ensure that the records are complete. One of the best ways to do this is to meticulously compare each medical record with its corresponding billing record. Remember, the billings are where the government’s investigation began. You can ensure that there are records for each of the dates billed, identify coding issues and have a better idea how to proceed in the audit.

Another important step is to make sure you produce the complete records. It is not enough to have them but you need to produce them and have records of the production. If you fail to produce records requested, you can be penalized financially or with adverse action against your provider number. If the auditor or regulator agrees you do not need to produce certain records or documentation, you or your health care attorney should document this agreement. It is important to document what is produced since you will be creating an administrative record. All records and documentation produced should be accompanied by a memorandum or letter itemizing the records produced and either delivered in person or with a return receipt or overnight service as proof of delivery.

8. Do NOT Alter The Records. If you need to supplement the records, make sure you do not back date or alter the records. Altering records can cause problems much worse than overpayments -- Medical Board complaints and discipline. Seek the advice of counsel when it comes to supplementing records or there is any issue about missing records.

9. Understand What Circumstances Might Can Trigger An Audit. Audits can provide an education. They can be stressful, especially if the outcome is unfavorable. However, they can offer tremendous amounts of information and educational opportunities for your office. Try to remain positive while you go through this process. What are some common triggers of audits?

■ High or excessive use of specific CPT codes. Sometimes excessive use of certain ICD-9 codes may also trigger audits. Generally, doctors who are outside the bell curve with regard to billing practices may get flagged on internal carrier audit screens.

If your practice tends to be more specialized (perhaps you specialize more in geriatric patients), you will, by the nature of your practice, be billing certain codes more frequently than the other doctors in the community who have a more broader-based practice pattern. You will want to explain these issues to the auditors. Do not be afraid to bill for specialized services or think that you will avoid an audit by underbilling or billing at the lower code. Just be extra careful in the documentation. Do not alter proper billing protocols just to try to stay under the radar. Bill for what you did and let the chart defend you.

Importantly, don't stress to the auditors how you provide services for "free" and underbill. That does not help your audit in most circumstances. Are you billing for codes where you are using new technology? Did you change your practice patterns to become more specialized so that your billing patterns changed? Did you add new diagnostic or therapeutic machines to the practice? Did you purchase a practice? If so, you may flag out on a statistical basis. Explain your billing and practice changes to the auditors and the best defense is a well-documented file. Use the research notebook described above to ensure you are complying with all the documentation and medical necessity requirements.

■ Do you have an unhappy patient or patient's family? If you have an unhappy patient, review the bill if the patient had a bad outcome or received an unexpectedly large bill. Sometimes collection practices or a bad outcome can prompt a patient to launch a complaint that generated the audit. To avoid such problems in the future, make sure the patient knows upfront about the costs. Speak with the biller or collection service to alter methods of collections. Consider formulating a payment plan with the patient or allow patients to pay with a credit card. If one of the patients was unhappy, raise this with the auditors.

■ Do you have disgruntled current or former employees? All it takes is a complaint from a current or former employee to trigger a fraud audit or other review. The employee may try to get revenge and the best way to prevent this from occurring is to do the following:

--have a compliance plan that requires the employee to report suspected fraud and abuse during employment;

--conduct exit interviews where employees are asked about any suspected fraud or abuse;

--have written employee policies and maintain personnel files;

--have regular office meetings to review policies;

--address small issues before they escalate to large ones;

--make everyone in the office feel like part of the team; and

--educate the employees regarding billing and documentation requirements so that they do not mistakenly think that something is being done improperly.

If you suspect that a current or former employee triggered the audit, bring the disgruntled employee up in the audit and explain why he or she is not credible if he or she is the source. The auditor may not identify the complainant but this may help defuse the employee's allegations.

■ Are You Overusing Pre-Printed Forms Or Template Shortcuts? Be careful with the use of templates especially in electronic records. Although templates are acceptable charting methods, they can look very repetitive, especially when it comes to routine care and services. Each chart note should clearly reflect the chief complaint, history, examination and treatment you rendered on that date for that patient.

Cutting and pasting templates/macros from previous dates of service and simply using that language again in subsequent chart notes does not necessarily indicate what happened on that specific date of service. It makes for a bigger charts but once it looks repetitive or like filler, it can cause an issue with the audit where your office might be characterized as a "mill" or you are questioned about the amount of time spent with the patient.

Look for these triggers and others as they will help you defend the audit. Do not be afraid of negative facts or problems that you have found. If there are weaknesses or mistakes, discuss with your health care attorney whether you should concede certain issues at the audit level for credibility reasons. Do not assume that if you admit certain problems that the auditors will be fair to you or not seek overpayment. You need to have a strategy and having an outside objective person such as a health care attorney can be useful so you do not make a tactical mistake that could cause later problems or result in an overpayment.

10. Be Professional. Treat the auditors with respect even when you disagree with them or their position. This is another reason to have an objective health care attorney for you to rely upon. It is easy to get emotional and defensive when your medical services seem like they are under attack and you already feel underpaid by the carriers.

11. Maintain A Notebook Of Administrative And Professional Records. In advance of the audit, have a notebook or file with all the key documents you need for an audit. You will be prepared and then update these on an annual basis at the beginning of the year. These records include but are not limited to the following:

--All Medicare and Medi-Cal applications and supplemental applications (see if there is an issue with failure to update these applications);

--Malpractice insurance, workers' compensation insurance; liability insurance and any other insurance required by the programs; --Copies of all licenses held by providers and staff;

--Other business documentation required by the programs such as office leases, contracts with laboratories, contracts with suppliers, etc. (this will depend upon the type of provider);

--Equipment lists where the equipment is diagnostic or used for billing; and

--Any other documentation required by the program and its manuals.

12. Request An Exit Conference Or Meeting Upon The Conclusion Of The Audit. Depending on the type of audit or visit, you want to have an exit conference or meeting where you can address any outstanding issues in the audit. You also may want to or submit a letter that is reviewed or drafted by your health care attorney showing that you have fully complied with all record requests and documenting any positions regarding coding, billing, medical necessity or other issues that have arisen. Having an excellent record of your submissions will be important to obtaining a favorable result and creating a good record if there is a subsequent hearing.

13. Conclusion. Audits happen to all providers. It does not necessarily mean you are a bad provider or that you should immediately leave the Medicare or Medi-Cal programs. With increasing financial pressures on health programs and practices, it is important to be forward thinking and create compliance plans and self-audit so your practice does not get assessed an overpayment.

During the audit, do your best to turn a potentially negative situation into a positive learning experience to correct any legitimate problems that the audit may uncover as well as to minimize the chance of future audits. Being stubborn and continuing to bill improperly will not help your practice. The carrier may still monitor your subsequent claims to see if your billing practices have actually changed and comply with the program's rules and regulations. Be proactive, anticipate audits in advance and handle audits intelligently and you will prevail to the greatest extent possible.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation.

Friday, August 20, 2010

Licensed professionals and those with jobs in law enforcement or the types of job that require security clearances suffer more – almost a type of double jeopardy – when they are charged with or convicted of a crime.

In some cases, professionals can suffer collateral consequences when they are charged but have yet to be convicted. For example, if a licensed physician is charged with Medi-Cal fraud, he or she will probably be subjected to a temporary suspension and temporary withhold by the Department of Health Care Services even when there is no conviction.

In California, if you have a professional license and plead guilty to a misdemeanor or felony (even one that can be reduced to a misdemeanor and be expunged), it is virtually certain that at some point you will face disciplinary action or investigation against your license arising from the conviction. This does not mean necessarily that your license will be revoked but there is a range of discipline. The level of that discipline may depend on how you handle your criminal case and disciplinary investigation from the beginning. If a resident doctor or pharmacy graduate has a drunk driving conviction that could negatively affect him or her from being licensed.

A recent review of recent Accusations filed by the California Board of Chiropractic Examiners and discipline imposed by the California Department of Real Estate -- just two of many professional boards -- reveal what we have known well from our practical experience: the most common ground for revocation of a license, probation or for even filing an Accusation against a license is a criminal conviction.

For example, out of 33 Accusations filed by the Chiropractic Board from July 1, 2008 to March 30, 2009 - 22 involved criminal convictions. For the Department of Real Estate, over a 3 month period, out of 101 licenses that were revoked, 72 were revoked on the ground that there was a substantially related criminal conviction in violation of Business & Profession Code Section 490 and/or there was a mere conviction of a crime in violation of Business & Profession Code Section 10177(b). For the 31 real estate licenses that were revoked with a right to a restricted license, 23 of those cases involved a criminal conviction. Most other professional boards and bureaus follow this same pattern.

One reason this occurs is that criminal convictions are easy targets for the Board investigators. There's no need to prove gross negligence or engage in a debate among the experts. It is simple to prove up a conviction -- even those that are not related to the professional practice. Most criminal acts involve "moral turpitude" and allow the Boards to look tough on discipline especially when they are not especially devoted to consumer or patient protection or simply do not have the budget to do so.

What are 8 things a licensed professional can learn from these statistics and do if they are facing the potential criminal charges?

First, it goes without saying, avoid criminal charges at all costs! Do not put your license at risk. If you are entering into a business or professional transaction that could expose you to some risk, seek legal advice to ensure compliance with the law. This could serve as a defense later in the event there are charges filed. If you are facing criminal charges or think they are a possibility, do everything in your power with the help of experienced counsel to get the charges dismissed if possible. In everyday life, use common sense: do not drink and drive since drunk driving convictions are among the most common.

Second, if you are facing a criminal investigation, be proactive at that time. If there is obvious true exposure, obtain experienced counsel and work on reaching the best result possible. Consider the collateral consequences to your professional license in every way possible. In some cases, reach an agreement pre-filing or early in the stages where you can influence the charge. Seek charges if possible that will have the least impact on the license. In cases that will proceed to trial, realize that the consequence of a criminal felony conviction could well be revocation of the license. Civil compromises, deferred prosecution agreements and other mechanisms should be considered if available.

Third, do not falsely believe that only prosecutions related to the practice of your profession will result in professional discipline. The reality is that any criminal conviction for any criminal act can constitute professional misconduct. The various boards and licensed discipline professionals will discipline for anything from petty theft (shoplifting) to driving under the influence to domestic violence to tax fraud and business crimes. Disciplinary sanctions will depend on the nature of the crime committed and many additional factors.

Fourth, remember that even if you win your criminal case at trial, the burden of proof is lower at an administrative hearing. You can win the criminal trial battle but lose the war on your license. Winning your criminal case may not make the administrative matter go away. Be prepared for and aware of this fact.

Fifth, while fighting the criminal case, have counsel that will act in a manner that will not jeopardize your license. You also need to act in a manner that does not further harm your chances of holding onto your license or seeking reinstatement at an early time. Do not make any false statements or misrepresentations during proffer sessions, interviews or during testimony.

Sixth, with the help of experienced counsel, create a strategy to help bolster your professional defense while you defend your criminal case. This may include continuing education, volunteer work and other ways of showing that you are a professional who is valued in the community. Each case is different and there is no cookie cutter approach that works effectively. We like to tell clients that we help them earn the right to say they are sorry to the professional licensing boards and show them that they have learned from this experience. This needs to be done through hard work and not simply promises or letters. Action speaks louder than words.

Seventh, do not submit to interview with any government officials -- law enforcement or board investigators -- without having experienced counsel present and without being fully prepared. This is probably one of the most important points. More cases are damaged by ill-prepared interviews, confessions and misstatements which do more harm than good.

Eighth, get professional legal assistance. A client who represents himself or herself does not have the experience needed and cannot be objective. Even if you think it is outside of your budget, think about the earning potential of your license over the course of your career and the value. In addition, see if you can at least hire an experienced attorney for objective guidance and advice on the key points and strategies.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed providers and in administrative board and discipline matters in California and throughout the country. Their website is: http://www.greenassoc.com/

Wednesday, August 18, 2010

When you are applying for a license (or renewing one) from the California Medical Board, State Bar, Department of Real Estate, Department of Pharmacy, Board of Registered Nursing or any other state agency or any employer that is required to report to state agencies or databanks (such as hospitals), all applicants need to remember the following basic guidelines:

1. When you sign the application, you are certifying that all the information is accurate. In most of the applications and renewal forms you are declaring under the penalty of perjury that all the information is true and correct. This means it is as if you are under oath and promising to tell the truth.

2. If you do not complete the form accurately, your application can be denied on the sole ground that you falsified the application and/or intended to deceive the agency. If you give inaccurate information on a renewal, this can be grounds for discipline and constitute unprofessional conduct.

3. Take the questions literally and do not rely on your own interpretation. Err on the side of being cautious. Be overinclusive and not underinclusive. For example, if the question asks if you have a conviction, find out the definition of "conviction" since any expunged or deferred entry of judgment criminal cases will probably count as "convictions."

4. Some of the questions are vague or ambiguous - err on the side of caution and full disclosure. It is not unusual for board questionnaires to be somewhat ambiguous or to be subject to some level of subjective interpretation. If an applicant is unsure as to the interpretation of a question he or she should answer it both ways. In addition, explain that you believed there was an ambiguity and set that forth so there is no confusion.

We also suggest having an experienced licensing attorney review your application for language and explanations to ensure that it is accurate but setting forth your position in the best light. The time and expense is well worth the chance of being denied a license for intentionally misleading the licensing board. Since an attorney is objective and experienced in writing these explanations, this can help a great deal. Often people are emotional, embarrassed and have a tendency to minimize or focus on irrelevant facts which makes their statements of explanation hurt them rather than help them.

For example, let us take a question from the Nursing Board's actual application:

Question: "Have you ever had disciplinary proceedings against any license as a RN or any health-care related license or certificate including revocation, suspension, probation, voluntary surrender, or any other proceeding in any state or country? If yes, please provide a detailed written explanation, including the date and state or country where the discipline occurred."

Ambiguity: The first part of the question asks about any "disciplinary proceedings" while the second half asks "where the discipline occurred." The question might seem to assume that it is only interested in cases where actual discipline was imposed.

Do NOT make this assumption. The safer and better course to follow is to set forth any actual accusations or disciplinary charges and if the case was dismissed or no discipline was imposed to state those facts.

5. Criminal Charges. The question that we see applicants harm themselves the most is the one regarding criminal charges. The disposition of criminal cases is often ambiguous and a review of original records is often necessary to know the proper way to answer these questions. We have had many cases where the applicant's failure to disclose the charge accurately resulted in denial of the license or the granting of a restricted license or probation being imposed and we are hired to handle the appeal or disciplinary charge. If the person had answered the question accurately -- the license would have been issued but the perceived deception created significant problems.

Case Example: Physician finished residency and applies for privileges at Los Angeles Hospital. He had disclosed an old driving under the influence conviction to the Medical Board. however, when he applied for privileges at the hospital, he did not disclose the conviction. The hospital ran a background check and denied his application for privileges on the ground that he was deceptive on his application. Under the law, the hospital was required to report the denial of privileges to the Medical Board of California. By the time we met him, the Medical Board filed an Accusation and this young physician had already entered into a Stipulated Settlement and Decision to be on probation for 3 years.

Here is a sample criminal charge question:

"Have you ever been convicted of any offense other than minor traffic violations? If yes, explain fully as described in the applicant instructions. Convictions must be reported even if they have been adjudicated, dismissed or expunged or if a diversion program has been completed under the Penal Code or Article 5 of the Vehicle Code. Traffic violations involving driving under the influence, injury to persons or providing false information must be reported. The definition of conviction includes a plea of nolo contendere (no contest), as well as pleas or verdicts of guilty."

Thus, if someone had been charged and there was a deferred entry of judgment where the case would be dismissed upon the completion of community service and having no further arrests for one year, it will probably be necessary to disclose that charge. Err on the side of caution.

6. Make sure the application is complete to avoid unnecessary delays. Read and re-read the requirements and have someone else review it for errors or omissions.

7. Rehabilitation. If in your youth or past, you had some criminal charges, discipline from employers or agencies, drug/alcohol issues, mental health issues or other life experiences that contributed to the prior conviction/discipline -- your application should reflect your rehabilitation and why you are not the same person that committed those errors and why it is unlikely that these issues will arise again.

We are often hired to assist a person in drafting the best application possible and creating a package that will help someone get licensed where there are past criminal convictions and disciplinary problems. The wonderful thing about the United States is the people can have second or even third acts in their life. The key is acknowledging the past problems and showing why you have earned the right to a license and there is a minimal likelihood that it will ever occur again.

Applicants must also submit a description of the rehabilitative changes in their life, which would enable them to avoid future occurrences. To make a determination in these cases, the Board considers the nature and severity of the offense, additional subsequent acts, recency of acts or crimes, compliance with court sanctions, and evidence of rehabilitation.

The burden of proof lies with the applicant to demonstrate acceptable documented evidence of rehabilitation. We create a package where we show that the applicant has met his or her burden.

Examples of rehabilitation evidence include, but are not be limited to:

• Detailed letter from applicant attached to the application describing the events at issue (prior criminal or disciplinary charges) and rehabilitative efforts or changes in life to prevent future problems.

• Letters of reference on official letterhead from employers, instructors, professionals in the same field, professional counselors, parole or probation officers, or other individuals in positions of authority who are knowledgeable about your rehabilitation efforts.

• Letters from recognized recovery programs and/or counselors attesting to current sobriety and length of time of sobriety, if there is a history of alcohol or drug abuse.

• Proof of community work, schooling, self-improvement efforts.

• Court-issued certificate of rehabilitation or evidence of expungement, proof of compliance with criminal probation or parole, and orders of the court.

• Support letters from others in the community who are knowledgeable about rehabilitation efforts, current skills and why they are supporting your application even though they know about the prior criminal or disciplinary case.

We help outline, draft and coordinate the letters and entire application package and provide an objective view of what the typical agency or bureau wants in the application. Often the applicant fails to realize that although there are many current licensees with problems and issues, in order to be licensed with some adverse history he or she needs to jump a hurdle and prove that he or she is not a disaster waiting to happen and that instead, will be a credit to the profession.

Conclusion: Your application and/or renewal application is one of the most important documents you can complete. If there are some areas of your past that are troublesome or cause you concern, it is well worth hiring an experienced attorney (even if only for a few hours) to assist you in handling these issues such as ordering the court records and drafting the explanation in an attachment. Remember the value of your license over the course of your lifetime. It is a very valuable asset often worth millions of dollars.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed providers and in administrative board and discipline matters in California and throughout the country. Their website is: http://www.greenassoc.com/

Tuesday, August 17, 2010

One of my favorite writers for the New Yorker magazine is Dr. Atul Gawande, a practicing physician and surgeon in Boston. He recently wrote a 15-page article in the New Yorker titled "Letting Go: What Should Medicine Do When It Can't Save Your Life?" which focuses on the use and application of hospice care in terminal patients regardless of disease and/or condition.

How do you deal with patients and families who have been hit with news of a terminal illness? How do you react as treatment choices are made or when non-treatment is chosen? How should hospice/palliative care be defined? Who should pay for it? Why doesn't insurance or Medicare pay for doctors to have extensive conversations with the family about the options and whether "fighting death" at all costs for a month or longer is worth it and how it could affect the quality of life in those last months.

It is an excellent article both for health care professionals and patients,

Sunday, August 15, 2010

On August 12, 2010, the Manhattan U.S. Attorney unsealed charges against Manhattan physician Diana Williamson, who ran an AIDS clinic and primary practice in Harlem, and eight others and described them as being part of a "drug ring" that allegedly distributed thousands of oxycodone pills obtained through Medicaid fraud. Four search warrants were executed on the same day including one on Dr. Williamson's Harlem community clinic where they seized her computer and a reported 16 boxes of records.

A Complaint is only an accusation is not evidence of guilt. Dr. Williamson and the other defendants are presumed innocent and are entitled to a fair trial at which the government must prove guilt beyond a reasonable doubt.

According to the Complaint and other documents filed in Manhattan federal court the allegations are as follows. Between September 2009 and August 2010, Dr. Williamson, a primary care physician, allegedly wrote oxycodone prescriptions to patients who had no legitimate need for the medication. Co-defendant Lenny Hernandez allegedly recruited the individuals to obtain oxycodone prescriptions from Dr. Williamson. He also allegedly helped the individuals fill the prescriptions and arranged to resell the oxycodone to third parties.

It was then alleged that three other named defendants—Miguel Angel Hernandez, Franmi Saeta and Ivette Arroyo assisted Lenny Hernandez in obtaining and distributing oxycodone pills. Finally, it was alleged that Medicaid beneficiaries Antonio Martinez and Carl Guilford obtained oxycodone prescriptions from Dr. Williamson—despite having no medical need for the medication—then used their Medicaid-provided health benefits to fill their prescriptions and sold the pills to defendants Lenny Hernandez and Dr. Williamson.

It is alleged that records obtained from the New York State Office of the Medicaid Inspector General show that in just over 11 months that Dr. Williamson wrote Oxycontin prescriptions billed by the pharmacies to Medicaid worth $997,128. The total amount of all Medicaid prescriptions that Dr. Williamson wrote was allegedly worth $4,392,832 -- which means that the Oxycontin prescriptions made up almost 25 percent of the Medicaid prescriptions in value. It is alleged that analysis of patient prescription data and surveillance during the course of the investigation established that approximately 11,000 oxycodone pills were obtained and distributed during this time period.

Dr. Williamson and all the other defendants each are charged with one count of conspiracy to distribute and possession with the intent to distribute a controlled substance, which carries a maximum penalty of 20 years in prison and maximum fine of $1,000,000. Dr. Williamson and defendants Lenny Hernandez, Martinez and Guilford each are also charged with one count of conspiracy to commit health care fraud, which carries a maximum penalty of 20 years in prison and a maximum fine of $250,000. These maximum sentences are rarely handed out and sentencing in federal cases is complex.

Attorney Commentary

What can a physician who is not part of an alleged "drug ring" learn from this case?

First, in low-income areas where a high percentage of patients are Medicaid/Medi-Cal, it is critical to be street smart and understand that patients will seek prescriptions for drugs and medical equipment for resale purposes. Thus, a physician who simply prescribes pain medications or other medications or DME that can be sold on the street can seemingly be implicated when he or she writes the prescription. It is therefore critical to know one's patients and not write prescriptions where medical necessity could be subjective if the drug or DME being sought is something that has resale value. A physician in a low-income clinic needs office staff that can be gatekeepers and help protect the office from patients that want to take advantage of the system. For example, there could be a patient with an AIDS diagnosis who seeks prescription medications and then resells them on the street.

Second, physicians who have a significant Medi-Cal/Medicaid practice need to be extremely careful with marketing. Often the marketers will bring in patients, pay them to come into the offices and tell them what to say in order to obtain the services desired (obtain prescription for Oxycontin) and then offer to buy the drugs from them once the prescription is filled. It is easy to imagine a physician who gets caught up in one of these "schemes" simply because they have been working with some unscrupulous marketing.

My experience has been that the marketers in the vast majority of the cases never tell the physicians what is going on at the marketing level because the marketers are going to make money with the same patient by getting marketing from the pharmacy or from selling the prescription drug or DME obtained by the patient. The marketing is often what drives these illegal schemes and when it all comes out, the physician appears to have been willfully ignorant or the evidence is so overwhelming that no one will believe that the physician did not know what was going on with the prescriptions.

Third, marketing that does not comply with federal and state rules is a short term solution to making the practice profitable. Most of the marketing that is done in these type of cases violates the Stark and Anti-Kickback statutes. Physicians need to remember that if illegal marketing is done, then all the billing done for the patients who were recruited will be deemed false claims. It has been difficult for clinics to survive in this economy but the improper marketing has great risks inherent especially where the government is being billed.

Fourth, physicians with Medicare and Medicaid/Medi-Cal practices need to have compliance plans. To risk one's medical license and criminal prosecution if regulatory rules are violated is foolhardy. Ignorance of these rules with respect to marketing is not usually a viable defense. Consulting an experienced health care attorney and being compliant with the rules is important for remaining in the health care business in the long run. It is much more affordable than hiring an attorney during an audit, Medical Board investigation or criminal investigation.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers and in health care fraud related matters in California and throughout the country. Their website is: http://www.greenassoc.com/

Friday, August 13, 2010

On August 10, 2010, Sushil Sheth, age 50, a cardiologist who had privileges at three Chicago area hospitals, was sentenced by U.S. District Judge Rebecca Pallmeyer in a federal health care fraud case to a 60-month (5 year) federal prison term. His case was essentially an upcoding case where he allegedly billed at the highest level of care (99291 and 99292) where that level of care was not performed.

Dr. Sheth surrendered his medical license voluntarily and it was suspended by the Illinois Department of Professional Regulation in March 2010. As part of his sentence, he was ordered to pay approximately $13 million in restitution and forfeited property and funds totaling more than $11.3 million that the government seized from him.

This criminal case began with then Dr. Sheth being charged in January 2009 for billings to Medicare and other private health care companies between 2002 and 2007. He plead guilty a year ago pursuant to a Plea Agreement and Information (a copy of the Information is linked for those that would like to review the details).

As part of his plea, Dr. Sheth admitted that he obtained approximately $13 million, including approximately $8.3 million from Medicare and some $5 million from other public and private health care insurers—in fraudulent reimbursement for the highest level of cardiac care when those services were not performed—and then used the proceeds for his own benefit.

Dr. Sheth allegedly used his hospital privileges to access and obtain information about patients without their knowledge or consent. He was accused of hiring individuals to bill Medicare and other insurance providers for medical services that he purportedly rendered to patients whom he knew he never treated. Typically waiting almost a year after the treatment was purportedly provided, Dr. Sheth allegedly submitted more than 14,800 false claims for reimbursement for providing the highest level of cardiac care—requiring hands-on treatment in an intensive care unit—on multiple days during patients’ hospital stays.

One of the ways that the government intended to prove their case was to show that Dr. Sheth regularly submitted claims seeking payment that, when added together, had him providing more than 24 hours of medical services and treatment in a single day.

Since Dr. Sheth is Indian-American this case was of particular interest to this ethnic community. In my opinion, there needs to be outreach in the communities for immigrant physicians -- especially those who come from third world or less developed countries -- who are seemingly unaware of the harsh penalties for billing improprieties such as upcoding. The professional ethics that are taken for granted are cultural to a certain extent and education is essential for some physicians who move to the United States. Even though the percentage of physicians who are foreign born that commit fraud is a minority, the perception is that foreign born physicians are more likely to engage in billing abuse, not familiarize themselves with the regulations and not realize that these are not always issues that can be resolved with the repayment of money.

The government is prosecuting upcoding cases more frequently. Previously, upcoding was left as an administrative remedy for agencies whereby they conducted an audit for overpayment. Now that government and private insurers computers are more sophisticated and the government and private sectors are working together, there is an effort to determine how many patients are seen per day in order to determine whether a case rises to the level of fraud.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing health care providers in health care fraud and other types of fraud and overbilling allegations in California and throughout the country. Their website is: http://www.greenassoc.com/

Tuesday, August 10, 2010

The California Board of Registered Nursing (BRN) announced recently that it served 12 accusations against out-of-state licensees as a result of a data comparison with the National Council of State Boards of Nursing’s Nursys® license verification database. The purpose of this data comparison was for the BRN to find out if licensed nurses in California had been disciplined in other states. In some cases, licensees failed to disclose the discipline in the other state.

After a series of scathing articles in the Los Angeles Times, the BRN submitted its entire population of more than 375,000 licensees to see if any had had action taken against their licenses in other states. This process was started in late February 2010. About 3,500 records were returned, and BRN officials estimate as many as 2,000 of them will require action against their California licenses. For each, this will involve the filing of an accusation, which is an administrative document outlining the reasons BRN is seeking to take against a license.

The BRN is not contacting nurses prior to the filing of the Accusations and seeking to discuss the out-of-state discipline first. An Accusation will be the first notice the licensed nurses get of an investigation or a complaint in California. The nurses will simply receive an Accusation by mail.

The charge in the Accusation will be for unprofessional conduct, which, under California law, includes having action taken against their license by another state or government agency. The causes for discipline in other states included, among other things, sex offense convictions, fraudulent prescriptions, incompetence, and gross negligence.

If you receive an Accusation, it can be very intimidating and stressful in part because when you read the last page it will indicate that the BRN seeks to revoke the license. This in and of itself should not intimidate the nurse since it is standard language in every Accusation. It allows the BRN jurisdiction to revoke the license if the facts merit it.

It is possible for the nurse to save his or her license. It will take a proactive approach, the filing of a mitigation package and a demonstration of why the discipline was not previously reported. Hiring an experienced administrative law attorney can be very useful since it is difficult for the nurse to handle the legal parts of this process without assistance.

Given that this process has just begun, more Accusations are expected to be filed. Although many of these Accusations could be resolved with settlement agreements saving money and time, the BRN is working hard to show that it is reducing the amount of time it takes to discipline a licensee. Thus, Accusations will be filed and most of these cases will settle. These nurses have already been disciplined in the other state and the only misconduct in California was the discipline in the other state. It is being punished twice for the same offense. One issue that may be important is whether the nurse made any misrepresentations to the BRN when renewing the license.

If you have been disciplined in another state and are no longer practicing in California, you may want to take a proactive approach in researching what you should do with your California license so you are not also disciplined in California.

Each case is different and any nurse affected by Accusations resulting from the Verification Database needs to evaluate his or her position and goals in maintaining a California license and whether a California license is needed for their present or future work. Our firm works hard to personalize each individual licensee before the Board and present a detailed mitigation package in order to obtain the best result possible without going to hearing. If a hearing is needed, then thorough preparation, retention of experts and hard work and expertise is required in order to obtain the best possible result.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers and in administrative board and discipline matters in California and throughout the country. Their website is: http://www.greenassoc.com/

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We are attorneys who specialize in vigorously representing individuals, businesses and licensed professionals in administrative, civil, business, regulatory, health care and criminal matters. All communications are attorney-client privileged - even initial consults. Lawsuits and legal problems can cause great stress for the most sophisticated business people and individuals. Having a trusting relationship with our clients helps them see that they will get through it no matter how difficult it may seem at the moment.

We advise businesses and individuals on compliance plans and structuring businesses to comply with governmental regulations. As needed, we conduct internal and external investigations and audits, and tailor our representation for each individual client whether a business or individual. We are non-judgmental and experienced which means we have seen it all in over 25 years of practicing law.

We believe it is critical that clients understand their legal issues, set goals, identify and understand any obstacles and that we work as a team to address, prevent and solve any legal problems including civil, administrative or criminal investigations and cases.

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The office is located on the southwest corner of 6th & Flower in downtown Los Angeles. (The Standard Hotel is on the northeast corner of 6th and Flower.) The address is 800 West Sixth Street, Suite 450, Los Angeles, CA 90017. It is close to the interchange at the 110 and the 10 freeways.

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